NLRB Proposed Changes to Representation Regulations

The NLRB conducted two days of public meeting on proposed regulations for processing union election petitions and representation cases. The NLRB’s recent practice has been to allow a median time of 38 days between the time of filing of a petition to the conduct of balloting. The NLRB’s rulemaking proposal contains a provision that provides the regional director should select an election date “as soon as practicable.” The NLRB also declined a request by the House Education and Workforce Committee Chairman to extend the public comment period on the proposed regulation changes. For more on the proposed regulations see Winston’s client briefing, NLRB Proposes Amendments to Union Election Rules.

Meanwhile, the House Education and Workforce Committee voted to advance two pieces of legislation that would limit the NLRB’s ability to speed up representation hearings and elections and restrict the Board’s authority to require disclosures of worker contact information to unions. The first proposed bill, the Workforce Democracy and Fairness Act, would require the NLRB to observe minimum time intervals before opening a hearing on a petition for union representation and would prohibit the Board from starting the election process within 35 days of the filing of the petition. The other bill, an amendment to the Employee Privacy Protection Act, would limit the NLRB from releasing more than one form of contact information on voters before the NLRB elections on union representation.

Four bills that restrict union protesting and organizing are headed to Mississippi’s governor for signature. The bills, SB 2473, SB 2653, SB 2797, and SB 2689, include provisions that would prohibit mass picketing of a business or residence that blocks entrances or damages property, would make it illegal for individuals to coerce or intimidate business into staying on the sidelines in a union drive, would prohibit local governments from forcing contractors to utilize union labor, and would prevent local governments from limiting background checks by employers.

The NLRB issued a guidance memorandum for regional office employees on the use of default judgments to remedy employer or union breaches of unfair labor practice case settlements. The memorandum provides that regional directors will have discretion to approve settlements without default provisions in some cases if a “non-recidivist” party settles an allegation of “isolated” unlawful conduct before the issuance of a former complaint. The memorandum also gives some discretion to regional directors on imposing geographic and temporal limits on default provisions.

The NLRB issued a new notice requirement providing that notices in unfair labor practice cases will include a hyperlink to the case decision on the NLRB website, with instructions on obtaining a printed copy. Previously, the NLRB’s notices informed workers that their employers must take certain actions within a certain time frame, but did not provide any information on how to access the order.